By Micah Morrison
Judicial Watch experts were up on Capitol Hill earlier this month explaining the implications of a big 6-3 Supreme Court ruling in the fierce battle for clean elections. The immediate issues in Brnovich, Attorney General of Arizona, v. Democratic National Committee et al revolved around out-of-precinct voting and ballot harvesting. Should the Arizona practices be banned?
But both sides are hunting bigger game in the high-stakes case: Section Two of the Voting Rights Act. The standards set in Brnovich will impact a wide array of hot-button state election issues around the nation, including redistricting, voter ID, mail-in ballots, same-day registration, proof required for registration, early voting , third-party collection of ballots, and when polls can close on election day.
Reacting to the July 1 High Court ruling, Judicial Watch President Tom Fitton called it “a home run for cleaner elections, reaffirming that states may take action to prevent election fraud without waiting for it to occur within their own borders. This new decision rightly rejects the race baiting of the leftist partisans who pretend that neutral provisions to combat voter fraud (such as voter ID and bans on ballot harvesting) are presumptively racist.”
The Left went bonkers over Brnovich. President Biden called it a “broad assault against voting rights.” The New York Times editorial board said it was an “attack on democracy.” A Washington Post columnist said the decision leaves “voters of color increasingly vulnerable to efforts to exclude them from our democracy.”
Testifying before Capitol Hill committees two weeks later, Judicial Watch experts set the record straight. Judicial Watch Election Integrity Project Director Robert Popper condemned the “outrageous hyperbole” of critics of the Brnovich decision.
Popper noted that Section Two of the Voting Rights Act had given rise in recent years to extreme lawsuits challenging “ordinary-seeming regulations—and changes to such regulations—governing, for example, the use of absentee ballots, in-precinct voting, early voting, voter ID laws, election observers same-day registration, durational residency requirements, and straight-ticket voting.” In a less highly charged political time, Popper noted, the 2005 bipartisan Carter-Baker Commission Report “had expressly noted the need for such regulations, including those regarding absentee ballots, out-of-precinct voting, early voting, in-person ID requirements, and election observers.”
One example of Section Two abuse? In the Husted case, a district court ruled that an Ohio law decreasing the early voting period from 35 to 29 days violated the Voting Rights Act because the change interacted with “historical and social conditions” afflicting minority voters.
The Sixth Circuit Court of Appeals reversed the decision. It noted that the loss of one week of early voting was, at worst, a minor contraction of “one of the many conveniences that have generously facilitated voting participation in Ohio.” The appeals court also noted that thirteen states did not “permit any early in-person voting days.”
The Carter-Baker Commission recommendations and Husted are examples that should be kept in mind when assessing the hyperbole from the Left surrounding Brnovich and current challenges to election regulations, Popper noted.
Popper told Congress: “One hears—and large news outlets dutifully report— that there is a ‘tsunami’ of legislation ‘restricting the right to vote,’ that states reforming their mail-in voting laws as COVID retreats are engaged in ‘voter suppression,’ and even that these actions represent ‘the new Jim Crow.’ These claims are preposterous. At best, they reveal a startling historical ignorance. The grandfather laws, absurd literacy tests, poll taxes, intimidation and terroristic violence of the Jim Crow era have nothing whatever to do with, say, Ohio’s restriction of early voting from 35 to 29 days, or with limiting same-day registration. Nor do they have anything to do with regulating absentee ballots, out-of-precinct voting, or voter ID requirements, all reasonable electoral integrity measures approved by the Carter-Baker Commission. At worst these statements reveal a startling cynicism, driven by a desire to inflame passions—and to raise funds.”
Popper testified before a House Judiciary Committee subcommittee on July 16. Two days earlier, Judicial Watch Senior Attorney Russell Nobile spoke to a Senate subcommittee. Looking ahead, both men warned of trouble in the post-Brnovich landscape.
“In particular,” Popper noted, the Democrats’ top election bill priority in Congress—HR 4, the John Lewis Voting Rights Act—“is a bad idea.” It gives the attorney general “new, unchecked power” to sue directly for violations of the Constitution. The new powers likely would be centered in the Voting Section of the Civil Rights Division of the Justice Department which, Popper warned, “has in the past proved to be a hotbed of partisanship.”
Russell Nobile noted in his Senate testimony that the “truth is that HR 4 goes far beyond any civil rights law enacted during the height of the civil rights era. Rather, it is part of a grander plan to shift control of American elections away from individual state legislatures and into the hands of a single federal bureaucratic department.” You can read more from Nobile on HR 4 and the looming election integrity crisis in this Judicial Watch report.
Nobile also noted problems at the Voting Section of the Civil Rights Division of the Justice Department, where both he and Popper served earlier in their careers. Citing the recent “tremendous debate” over Critical Race Theory (CRT)—the Marxism-rooted ideology insisting that American democracy is suffused to its core by racism and must be dismantled—Nobile said that “there are few places in the federal government that are more dominated by the assumptions that underlie CRT. The partisanship and hostility towards staff that do not share the same assumptions is startling” and includes, from some, “a shocking level of intolerance.”
Nobile warns that even within highly political Washington, “the culture of the Voting Section stands out for its partisanship. Any legislation that shifts greater federal power to the Department’s Voting Section will make elections worse, not better.”
Read Robert Popper’s statement to the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties here.
Read Russell Nobile’s statement to the Senate Judiciary Committee’s Subcommittee on the Constitution here.